April 20, 2012

“I wanted to say I am sorry for the loss of your son,” Mr. Zimmerman, 28, said, speaking publicly for the first time about the Feb. 26 shooting. “I did not know how old he was. I thought he was a little bit younger than I am. I did not know if he was armed or not.”...

According to their lawyer, Benjamin Crump, Mr. Martin’s family was “completely devastated” by the judge’s decision that Mr. Zimmerman could be freed on such a low bail [$150,000]. He also described Mr. Zimmerman’s apology from the stand as “self-serving” and said he considered it a ploy to help win his release from jail.

Also unusual: a leak to ABC that helped Zimmerman, without having to be enhanced. I think that picture of Zimmerman's bleeding head is... problematic, at least, for the prosecution. Assuming they are as true as ABC said.

The instinct to apologize is admirable, but stupid, and I would hope his lawyer advised against it. Nothing this guy says will be enough to placate those who believe he is a racist killer. The family's lawyer's response is pretty clear: take your apology and shove it.

Also, the NY Post has republished photos obtained by ABC that show the bleeding and bruised head of Zimmerman at the scene. Also won't be enough to convince people that he was being beaten. "Photoshopped." Just wait for it.

$150,000 doesn't sound very low to me, to be honest. With bail like that, I'm surprised he's able to get out. But, maybe I just have never needed that much cash before, so maybe it is easier to round up than I think (especially if you'll get most of it back).

Alan Dershowitz has some pretty interesting things to say about the SP's affidavit and the lack of details that mention Zimmerman's injuries.

"not only immoral, but stupid" is the key phrase.

On the other hand I think it was a serious mistake to offer any kind of apology to the Martin family. I think most people in similar circumstances would respond to a simple question of what they were doing the simple answer "I'm going home" and not a fist. Additionally you can bet that the Martin's will try and use that apology at some point in the future in a tort claim against Zimmerman.

The apology is a master stroke. He just took up Mrs. Martin's offer of understanding that two men in the dark made a mistake. It is a partial admission of his doing an accidental mis-profiling of the dead man.

That will take the pressure off the Jury's to punish him for non-repentance, and it will go far in keeping his sentence low if he is convicted.

I agree with Trad. There's no jury yet, I don't think, and I doubt that Zimmerman can be cross-examined after such a statement. It's cross examination that makes putting your defendant on the stand a risky proposition. If cross wasn't allowed, you'd see a lot more defendants on the stand.

I wasn't paying full attention to the hearing but I did have it on in the background. At one point, the defense mentioned the figure of $15,000 (it was around the time he was discussing the financial situation of Zimmerman and of his parents, who were willing to put up their house). When I later heard the $150,000 figure, I assumed that this meant the $15,000 would be sufficient for posting 10% bond.

Also, perhaps Martin's family were upset because the State's representative mentioned a figure of $1 million (which, I must say, seemed absurdly large to me). With that in mind, I can understand why they might be disappointed. However, as at least one other person here pointed out, the point of bail is to ensure (and insure) appearance before the court, not to punish pre-trial, at least theoretically. It seems to me that the judge was reasonable, given the overall context.

Previously Ms Fulton had said, "I would probably give him an opportunity to apologize."

If it was a sincere apology, I think it probably helped. The lawyer had probably decided beforehand what he would say in the event Zimmerman apologized and what he had decided on was to call it "self-serving". The apology was for Fulton and Martin, anyway, not for the lawyers.

It was an interesting and odd play by Zimmerman's lawyer. I think it probably was bad judgment in terms of submitting Zimmerman to cross examination before trial, but it turned out okay, in part because the prosecutor was pretty incompetent in his cross examination and the judge helped in limiting cross.

The defense attorney also might already realize there is insufficient evidence to convict and needs to focus on the PR side of the case to help diminish the change of a higly biased jury.

And as to what Zimmerman said, of course Zimmerman is sorry about the loss of the Martin's son. How could he be anything else?

The more important part of the hearing was the admission by the state's witness that he has no evidence to contradict Zimmerman's claims that Martin started the fight and that Zimmerman was returning to his truck after his police call when Martin approached him. I don't know how the prosecutor could think she can get a conviction and perhas she does not think she can. It appears more likely it was a politically motivated charge. The charged second degree murder without evidence to refute Zimmerman's claims that he was the victim of an attack by Martin and that he was headed back to his car. Amazing.

De la Rionda to Gilbreath: "Prior to that confrontation, Mr. Martin was minding his own business, correct?"

O'Mara: Objection your honor -- this is not in evidence.

The objection is sustained

Secondly, the investigator who signed the affidavit supporting the Information asserting 2nd Degree Murder was unable to say, in a number of places, who said or determined what in the affidavit. It was a group document, apparently put together by the two investigators who signed it, as well as a prosecution attorney. He couldn't say who inserted a number of things in the affidavit, but it wasn't him, but he signed it anyway.

Third, the investigator was forced to admit that they used loaded terms in the affidavit that they could not support with the evidence.

Finally, the investigator is on record, under oath, declaring these things. It will be interesting to see how the defense can use this in subsequent proceedings, esp. when they get the other investigator on the stand. Wonder how many of those loaded terms came from the attorney helping them with the affidavit?

Is it normal for a different prosecutor to run the bail hearing than the one who handles the press conferences? Or am I just misremembering the person who gave the press conference? Maybe that's why the guy was unprepared, because he was.

Edutcher: I think he was bigger when the famous mugshot that first went around was, one of his neighbors (or his brother? I forget) mentioned he'd lost 20-30 pounds since then (which was taken awhile ago in an unrelated case, I think a few years back).

Good day for Z man. The pictures of the bloody back of his head make his story of Trayvon slamming his head against the concrete quite believable. The heartfelt apology has to help some. Surviving testifying in good shape was a large boost in his credibility. Z man also looked good in his suit.

Here's hoping that nobody hurts Z man while he is awaiting trial and during trial.

The Martin family rebuffed the approach by the Zimmerman family because an apology would have put them in a precariously biding position.. I'm interpreting it as an effort at consistency on their part.. small silverlining of sorts.

Didn't the deceased mother say something to the effect that the shooter had not even apologized?

When the Zimmermans were privately rebuffed, that should have ended the apology caper.

Of course the blogosphere is fully enraptured in its quasi-homoerotic Black Male Physical Superiority fetish. All those fast-twitch muscles! Such superior athleticism! World-class street fighting skills! Why, the average white (or, as here, mestizo) man has zero chance in mano-a-mano combat with just about any black male over 12 years old!

It's not a damaging statement to say that you didn't know whether he was armed or not at the time of the encounter. Nothing about the privilege of self-defense requires that you know this condition at the time you exercise self defense. He could have feared for his life in the sense that Martin saw he he (Zimmerman) was armed and Zimmerman could have feared that he was bring overpowered and would be killed with his own gun if things progressed further. I'm not saying I buy that at this stage, just that Zimmerman has the opportunity to show that to the jury (or to the judge, if this is a bench trial).

I caught a portion of the testimony from Zimmerman, and I was impressed that he knew when to wait for objections (by his lawyer) that the Prosecutor was going beyond the scope of the direct testimony he offered, in questioning on cross.

This is a very preliminary aspect of things, but if it is any view into the conduct of the trial, this could be very heavy sledding for the State's Attorney.

If Zimmerman is as confident as I think he is, he should go with a bench trial.

Edutcher: I think he was bigger when the famous mugshot that first went around was, one of his neighbors (or his brother? I forget) mentioned he'd lost 20-30 pounds since then (which was taken awhile ago in an unrelated case, I think a few years back).

You may be right, but I was thinking height as much as weight.

Seeing him with those cops when he was arraigned, I had expected a more imposing man physically.

The Martins' lawyer, Mr. Crump, is supposed to look out for their interests, including the likely civil suit that will probably follow the criminal trial regardless of outcome.You may question the wisdom of the manner in which he is doing it, but not that he is doing it.

The Martins' lawyer, Mr. Crump, is supposed to look out for their interests, including the likely civil suit that will probably follow the criminal trial regardless of outcome.You may question the wisdom of the manner in which he is doing it, but not that he is doing it.

Well, as a matter of fact, I do question not only the manner of it, but that he's doing it, suing Zimmerman gets the family nothing.

Seven Machos said...Matthew -- A bail of $150,000 would typically mean pledging (not necessarily giving at all) $15,000 to the bail bondsman, which can be given in the form of multiple assets -- a house, a car, etc

How many people have $150,000 in net assets to pledge and $15,000 in cash? Unless you are upper middle class with a high income and assets this isn't a joke of a bail.

For one thing he shouldn't have said what he said about Martin's age. If I recall he said something different in the 911 call. Just a bad idea for a defendant to give this kind of statement-- as a person I'm glad to hear this kind of contrition, but as a lawyer I'm shaking my head.

Secondly, the investigator who signed the affidavit supporting the Information asserting 2nd Degree Murder was unable to say, in a number of places, who said or determined what in the affidavit. It was a group document, apparently put together by the two investigators who signed it, as well as a prosecution attorney. He couldn't say who inserted a number of things in the affidavit, but it wasn't him, but he signed it anyway.

Third, the investigator was forced to admit that they used loaded terms in the affidavit that they could not support with the evidence.

Finally, the investigator is on record, under oath, declaring these things. It will be interesting to see how the defense can use this in subsequent proceedings, esp. when they get the other investigator on the stand. Wonder how many of those loaded terms came from the attorney helping them with the affidavit?

4/20/12 2:45 PM

I wonder what anti perjury language was included in the affidavit. If what is quoted above is true the investigator under cross examination could find himself in a world of hurt later. Perjury isn't a joke, especially in a criminal trial. The defense might even to able to get the lawyer who coached or drafted the affidavit to be forced to testify as well.

I don't know one way or the other if Zimmerman is guilty or not, but these kinds of antics done in a rush for political reasons are usually the kind of things that in a well publicized case with a good defense lawyer results in acquittals. And often times, race riots.

Regarding the "new" photos, hard to believe police or medics didn't take some at the scene. But then, I am always amazed doctors almost never take pictures of medical situations, relying solely on written description.

The apology might have been better if he mentioned his judgement may have been clouded due to his head being struck against concrete.

Wally is correct that, based on how weak the prosecution evidence currently look (they cannot disptue Zimmerman's claim that Martin started the fight or that Zimmerman was headed back to his truck when Martin confonted him), Zimmerman should waive his jury trial and go for trial before a judge. Any fair judge would throw the case out, unless the state comes up with much better evidence than currently suggested.

By the way, I think the level of the charge (second degree murder) was all for show (and unethical) and/or political reasons (as perhaps the entire charge) because the prosecutor knew she could reduce it to a lesser charge at trial.

Again, I don't understand why. There's no question that he shot Martin. What's wrong with feeling bad about having done so?

Oh no, not the contrition part, but when he says he didn't know how old Martin was and that "I thought he was a little bit younger than I am." My recollection is that he called Martin a kid in that one tape. This is why crim lawyers don't like their clients to testify or say anything. Little inconsistencies, even if minor, can be used to impeach his credibility. Once a jury is convinced a witness or defendant is lying, nothing can rehabilitate that image.

Zimmerman seemed soft spoken, reasonable, and in control of his emotions. His physique is not burly or intimidating. He is not the guy you see in the mug shot......Parts of this testimony wll play on an endless loop until the actual trial. His testimony is not proof of his innocence, but it is proof that he is not the ogre the media first accused him of being....I think some of the talking heads on cable are sounding less accusatory lately. They don't apologize for their previous mistakes, but they have stopped repeating them. I suppose that's progress.

Those armchair courtroom experts that think an apology was a horrendous mistake overlook the text Bruce Hayden linked to (in his excellent 2:45PM post) - it went through his lawyer.

Make no mistake, this is a political trial, with the media poised to cast Zimmerman as unapologetic and the Noble Victim's Family the height of the unquestioned moral superiority the liberal-progressive jewish media gives to aggrieved blacks. (And why the NY Times immediately labeled Zimmerman a "white hispanic" - to remove any minority group moral superiority from him.

So the lawyer probably green-lighted the apology to help take away the ammunition of "The Narrative". Letting people know Zimmerman is sorry, remorseful of the events. Which is what they coach cops to do when cops shoot a minority group thug, a robber. It helps placate the media's victimhood meme-generating. It makes it harder for the race card hucksters to manipulate blacks and empathetic (but stupid) women when everyone hears the coached cop say "Not a day has passed when I haven't relieved the tragic events of that day, where a troubled youth weilding a meat cleaver met his tragic end. Who knows, he could have grown up to cure cancer.."

Mitchell said...“I did not know how old he was. I thought he was a little bit younger than I am."

Huh?

Z's lawyer got the apology and the fact that Z did not properly estimate Travon's age out in pubic. He also got an apology and, via a leak today, the idea that Z did not know if Trayvon had a gun. Now this is out there, even if Z does not testify. (He won't, unless the prosecution's case goes very well."

Very good day for the defense, completely apart from the bail.

Not as good as OJ putting on the gloves and pretending they did not fit, though.

A bail of $150,000 would typically mean pledging (not necessarily giving at all) $15,000 to the bail bondsman, which can be given in the form of multiple assets -- a house, a car, etc.

No, that's not right. His parents are not going to give their house to a bail bondsman. Where are they going to live? He keeps the house!

When you have to make bail, you have three options.

Option #1: Raise the bail money. It doesn't have to be cash. You can give title to your property. The deed to your house, your car, your stock portfolio, your IRA, whatever you got. The Court keeps legal possession until your court date. But you don't actually lose your property, unless you fail to show up at court. So if George and his family have a net worth of at least $150,000, this is the option for them.

Option #2. Visit a bail bondsman. This is like going to a pawn shop. Except scuzzier. This is the option for people who do not have a net worth of $150,000, but desperately want to get out of jail. You will be paying a fee to the bail bondsman, usually 10%. (But everything is negotiable). Say the bondsman charges $15,000. You are out that money. Bye-bye. The bondsman puts up the $150,000. And if you fail to show up, he is out the $150,000. So this is the favorite option of people who plan to jump bail. (Although some people use option #1, and then dick their family--houses have been lost over shit like this).

Option #3: Stay in jail. This is the option of people who do not have a family, or their family does not trust them, or they don't have the money to pay a bail bondsman. Or they don't want to pay a bail bondsman $15,000 for a few months of freedom.

I would think $150,000 is on the low side for a murder 2. In the Casey Anthony case, bond was set at $500,000.

The standard, by the way, is for the judge to determine how likely it is the defendant will show up (high in this case, as he turned himself in, and confessed to the police) and how dangerous he is to the community (low in this case, as his criminal record is minimal and he has a strong self-defense claim).

Option #1: Raise the bail money. It doesn't have to be cash. You can give title to your property. The deed to your house, your car, your stock portfolio, your IRA, whatever you got. The Court keeps legal possession until your court date. But you don't actually lose your property, unless you fail to show up at court.

I did not know how old he was. I thought he was a little bit younger than I am.

It looks to me that this part of Zimmerman's apology was a sincere but inept attempt to tell the Martin parents that he did not realize that their son was a teenager – a credible misconception considering that the boy had his hood up that night. If so, it implies that Zimmerman was trying to communicate the he may have acted differently if he had known the boy was only 17. The MSM will no doubt offer analysis of every word. I believe the entire apology was ill-advised. I also suspect Zimmerman's communication skills are not the best. I suspect his lawyer did not approve. Zimmerman may be just dumb enough to ignore the advice of his lawyer. He certainly did with the first two.

I was encouraged when I first read about a Special Prosecutor being appointed but was later disappointed when I learned that the Special Prosecutor was just another elected hack who has to pay attention to politics. Someone other than a politician should have been appointed but that may have been impractical considering that anyone in Florida with prosecutorial experience would have probably gained that experience through elected office.

Angela Corey is a Republican, as is Rick Scott, who appointed her. If by some miracle Zimmerman is found not guilty I'll lay ten to one odds that Sharpton will claim that the verdict was the result of a rightwing conspiracy.

That will take the pressure off the Jury's to punish him for non-repentance, and it will go far in keeping his sentence low if he is convicted.

At this point, a charge of perjury in the indictment affidavit is more likely than a conviction of Zimmerman.

And I KNOW, I KNOW, I KNOW what and why Z is claiming as self-defense. It's still a damaging statement.

Why? Saying he KNEW he was armed would be evidence that he lied.

For one thing he shouldn't have said what he said about Martin's age. If I recall he said something different in the 911 call. Just a bad idea for a defendant to give this kind of statement-- as a person I'm glad to hear this kind of contrition, but as a lawyer I'm shaking my head.

Admitting that info that he received after the fact enlightened him to things is bad...how?

He did not say nothing happened that night. He felt bad that it happened. As any sane person would feel.

Oh no, not the contrition part, but when he says he didn't know how old Martin was and that "I thought he was a little bit younger than I am." My recollection is that he called Martin a kid in that one tape

I missed the fact that Z. also testified that he did not know whether Martin had a gun. That had been leaked too.

It's the trifecta:

1. Apology2. Martin seemed older than he was.3. Martin could have had a gun.

All from the mouth of the defendant himself, who was weakly cross examined, and does not have to testify at trial.

I said earlier that Z was going to need a very good lawyer. Seems he had one.

Z. could have been cross examined on the testimony about Martin's age and whether he had a gun. The prosecution was not prepared enough of quick enough on their feet to do this. (Maybe they just decided not to, but I doubt it.)

This testimony was also made easier by Martin's family's well publicized declination to meet with Z. (I don't blame them for the decision.) But somehow the prosecution-family got bamboozled into deciding this (and making it a public issue) before the bond hearing.

"It's not a damaging statement to say that you didn't know whether he was armed or not at the time of the encounter."

Of course it is. It's an admission that Z shot M (using deadly force) against a person that he had no reason to give us that M was armed with deadly force. Everything else in your post is wild speculation.

Of course it is. It's an admission that Z shot M (using deadly force) against a person that he had no reason to give us that M was armed with deadly force. Everything else in your post is wild speculation.

Did you SEE the pictures of the injuries that race hustlers like Sharpton claimed were not there?

He was assaulted and beaten rather badly. He defended himself. Whether Martin had a gun or not is completely irrelevant. He was assaulting Zimmerman and had him rather badly bleeding.

"Why should they have a high bail? It's not like they had to chase him down or something."

Because the charge is second degree murder. The seriousness of the charge itself is enough to guarantee a degree of risk of flight.

"You're a woman. You know darn well that a fist is "deadly force.'"

What the hell does being a woman have to do with ANYTHING? I DO know this: that a fist is not considered deadly force. You would have to show that the owner of that fist was trained to be capable to use it as deadly force--like a professional boxer, or a highly trained martial artist, AND that the used it with sufficient force to cause death or serious bodily injury--the kind that puts a person in the hospital with a least serious, if not critical injuries. Neither condition was present here.

Leslyn: He said he did not know whether Martin had a gun. They were in a fight. If Z is telling the truth, he was attacked. He may or may not have been losing the fight, but he sure as hell was not winning.

Imagine this dialog:

Z: You are pounding my head against the pavement.

M: No shit!

Z: Would you stop for a second?

M; (Bashing him again) Why?

Z: I want to ask if you have a gun.

M: (Still bashing) Why?

Z: Cause if you don't, I won't pull mine.

M: You got a gun?

Z; Do you.

M: (silence) (bashes harder)

How do you expect that Z would have learned whether or not M had a gun? Most likely by far, when M pulled it and used it. When you are in a desperate fight--and this fight was desperate for at least one of them based on the cries for help--you don't wait for your opponent to pull his gun. You go first.

Now I have no idea whether Martin attacked Zimmerman first. But that's the crucial fact. Once the fight is on, you assume the worst about your opponent and use all reasonable means to save yourself.

It seems to me that everyone is ignoring the plain meaning of Zimmerman's "apology." He did not, for instance, say he felt shame for having performed an illegal or immoral act. He said he was sorry for the Martins' loss of their son. In other words, he empathizes with them in their pain. I don't see this in any way as an acknowledgement of guilt.

[Zimmerman] was assaulted and beaten rather badly. He defended himself. Whether Martin had a gun or not is completely irrelevant. He was assaulting Zimmerman and had him rather badly bleeding.

How he got his injuries is still a question to be determined at law. Regardless, Z was not beaten "rather badly." Not to the extent of using deadly force when he could offer nothing to say that M had deadly force.

Before you draw breath to scream at me about what I just said, consider this: If M assaulted Z, and if M pounded Z's head against the pavement, that would go to Z's state of mind as to whether he reasonably believed that this would escalate to deadly force or serious bodily harm.

If, if, if. None of those things have been proven yet, much less even had evidence entered about them.

Leslyn: You don't seem to know much about fights, or about the law of self defense. In your world, a person can use a firearm for defense against a fist attack only if the attacker is known to be a trained boxer or martial artist? I don't think so. The objective facts of the attackers training have little or nothing to do with it. The outcome is based on the nature of the attack and the state of mind of the victim of the attack.

Once again, you can't stop an attack to take inventory of the attacker's education in physical combat. Your position is ridiculous.

If, if, if. None of those things have been proven yet, much less even had evidence entered about them.

Proven how?

If you mean "proven in a court of law", it hasn't been proven yet that Zimmerman shot Martin at all. So maybe you should stop saying he did.

In the more colloquial English definition of "proven", i.e. "reasonable to believe based on the evidence", I would consider it proven that Martin was beating on Zimmerman and hitting Zimmerman's head against the concrete. It is certainly more reasonable than thinking Zimmerman broke his own nose and banged the back of his own head hard enough to draw blood.

Leslyn said:"I DO know this: that a fist is not considered deadly force. You would have to show that the owner of that fist was trained to be capable to use it as deadly force--like a professional boxer, or a highly trained martial artist, AND that the used it with sufficient force to cause death or serious bodily injury--the kind that puts a person in the hospital with a least serious, if not critical injuries."

Ha ha, how ridiculous, what a clown. Do you think only trained boxers and martial artists kill people with their bare hands? Ha ha, what an ignorant nitwit.

BTW, M was bashing Z's head against the concrete, how is that not deadly force?

It is amazing that you are so eager to reveal how much you don't know (and to do it in CAPS! Ha ha).

"Because the charge is second degree murder. The seriousness of the charge itself is enough to guarantee a degree of risk of flight."

This is wrong. Seriousness of a charge may be a factor, but in itself is insufficient to create a reason to deny bail, or set it very high.

"You would have to show that the owner of that fist was trained to be capable to use it as deadly force--like a professional boxer, or a highly trained martial artist, AND that the used it with sufficient force to cause death or serious bodily injury--the kind that puts a person in the hospital with a least serious, if not critical injuries. Neither condition was present here."

This is also wrong. A defendant must only show a reasonable belief that the assailant is about to use deadly force or cause serious bodily injury. The factors you cite may help such an argument, but are not required.

You are correct that your gender should have nothing to do with understanding the above concepts!

He can't say "I thought Martin was unarmed" -- he probably didn't think that, and if he did he'd be crazy to say it.

He could try to say "I thought he was armed", but in the absence of any real reason for thinking that it plays into the whole "why, because he was BLACK, you RACIST?!?" line that the prosecution is trying to play up.

Which leaves "I didn't know if he was armed or not" as the intelligent thing to say.

"You don't think you can kill a person by pounding their head against concrete? Interesting. "

Not what I said. I said in effect that Z uttered no words that deadly force was being used by M, or that he reasonably believed it would be used. Read my earlier post that no facts have come into evidence. You are assuming facts not in evidence--which would get what you just said about the head-banging thrown out in a court of law.

In any event, your opponent doesn't have to be currently armed with deadly force for self-defense to be legal. 4/20/12 8:06 PM

No. See my post of 8:05, while you were still writing. The facts in evidence would have to warrant a reasonable belief that deadly force was imminent. Not "maybe." Not "could have been."

Leslyn said:"I DO know this: that a fist is not considered deadly force. You would have to show that the owner of that fist was trained to be capable to use it as deadly force--like a professional boxer, or a highly trained martial artist, AND that the used it with sufficient force to cause death or serious bodily injury--the kind that puts a person in the hospital with a least serious, if not critical injuries."

Ha ha, how ridiculous. Do you think only trained boxers and martial artists kill people with their bare hands? Ha ha, how ignorant.

BTW, M was bashing Z's head against the concrete, how is that not deadly force?

It is amazing that you are so eager to reveal how much you don't know (and to do it in CAPS! Ha ha).

Self-defense is the one thing that always rests on nothing more than what a reasonable person thinks could possibly happen to them.

If someone knocks you down and disengages, then maybe they don't intend to kick you to death or bash your head into the concrete until you die. But if they're kicking or bashing, a reasonable person has every right to assume that it's going to go very badly, without waiting until after they are dead to be sure.

I will empathize with the parents here. If the person who has killed my son takes the stand and apologizes to me during the bail hearing for that self-same crime, I'm gonna be thinking it's a ploy. If anything, it's far too early, and the grief they are feeling is still too new.

So, No, I wouldn't really care to accept the apology right now either.

I hope, for their sake, that in time they will come to accept what has happened and to accept Zimmerman's remorse.

If M assaulted Z, and if M pounded Z's head against the pavement, that would go to Z's state of mind as to whether he reasonably believed that this would escalate to deadly force or serious bodily harm.

That's exactly right, if this was a manslaughter prosecution. But how do you get a Murder 2 indictment out of these facts?

The defendant called 911.

The defendant has bloody wounds on the back of his head.

The defendant has a broken nose.

The defendant has grass stains on the back of his shirt.

The defendant has at least one eyewitness who says Martin was on top of him, beating him.

I don't think you'll be able to prove (beyond a reasonable doubt!) that Zimmerman had the intent to murder Martin when he chased him.

Murderers do not call 911. Do they?

The police officers have a confession. But that confession includes Zimmerman's defense. He attacked me. He hit me. He broke my nose. He slammed my head into the concrete.

Zimmerman developed the intent to kill Martin when Martin was on top of him, hitting him. Even if his self-defense claim fails, this is not a Murder 2. At all. No way, no how. You don't even have probable cause for Murder 2.

Madison Man, I largely agree with you about the apology. God knows I never want to find out how willing I would be to accept an apology under these circumstances. I note, however, that Mr. Martin's mother was recently complaining about the lack of apology.

You would have to show that the owner of that fist was trained to be capable to use it as deadly force--like a professional boxer, or a highly trained martial artist, AND that the used it with sufficient force to cause death or serious bodily injury--the kind that puts a person in the hospital with a least serious, if not critical injuries. Neither condition was present here.

"This is also wrong. A defendant must only show a reasonable belief that the assailant is about to use deadly force or cause serious bodily injury. The factors you cite may help such an argument, but are not required."

Did I not just say that? Sure, right at 8:05.

Read Synova's lips (to which the quote above responded): ""You're a woman. You know darn well that a fist is "deadly force.'" My response was accurate as to how a fist, as a thing, is whether or not deadly force in law.

Peter your comment here seems poorly informed. Is this just our personal bias or something you have read somewhere.

Peter said...Of course the blogosphere is fully enraptured in its quasi-homoerotic Black Male Physical Superiority fetish. All those fast-twitch muscles! Such superior athleticism! World-class street fighting skills! Why, the average white (or, as here, mestizo) man has zero chance in mano-a-mano combat with just about any black male over 12 years old!

Trayvon Martin was a punk and a petty criminal and a gangstah wanna-be who got what he deserved.

Zimmerman is a hero.

Trayvon Martin will not be burgling womens jewelry again.

Paul a'barge, I do not know if you are a liberal moby getting his rocks off. Or you're actually a Republican who believes in shooting petty criminals.

But I do know that Andrew Breitbart is not like you. So putting up his photograph next to your rant is deeply offensive to me.

I ask you to remove the photograph from your future diatribes, as you are nothing like Breitbart, he's recently deceased, and this is very disrespectful. I believe an actual Republican would take this request seriously, out of respect for Breitbart.

Self Defence has a hidden clause in Obamacare that a lot of people dont know about.. Paragraph 6 section 6 page U2 says..

... where it is incumbent upon the person or persons claiming to be assaulted, to count while sustaining an x amount of blows (x amount to be determined by the HHS Secretary under section 5).. before it can be reasonably surmised that the person claiming assault is indeed intentionally being harmed, - (intentionality to be determined by the HHS Secretary under section 5, contingent upon the Proportionality Clause under section 7) thereby triggering, within reasonable certainty, probable cause to effect, with precautionary caveats, maneuvers that could be reasonably interpreted by the aggressor (withing 5 business days) as defensive in nature.

Since this is not a domestic abuse case, I limited my answer to whether a fist, as a thing, is itself deadly force in law.

And the answer is the same as it is for anything else: "it depends on how it is used".

The whole "fists aren't deadly weapons" schtick is just a red herring, anyway. Zimmerman claims Martin tried to grab his gun. That is legitimate justification for the use of deadly force; police use it all the time.

Leslyn: You don't seem to know much about fights, or about the law of self defense. In your world, a person can use a firearm for defense against a fist attack only if the attacker is known to be a trained boxer or martial artist? I don't think so. The objective facts of the attackers training have little or nothing to do with it. The outcome is based on the nature of the attack and the state of mind of the victim of the attack. Once again, you can't stop an attack to take inventory of the attacker's education in physical combat. Your position is ridiculous. 4/20/12 8:08 P.M.

Read my post of 8:05 re state of mind (I believe you were writing then), and of 8:48 re whether a fist, as a thing, constitutes deadly force. I hope that makes it clearer.

If all y'all are going to make up hypotheticals and exaggerations and dialogues and different types of cases, that I didn't say, give me fair warning.

leslyn said...@Lem:"beating," "pounding away" "Zimm cried for help""None of those are "facts" that are in evidence.

For folks in general who complain that this case is being tried in the press, you don't seem to have any problem trying it in this blog."

You may be confused, this is a discussion, not a trial. Z was obviously getting beaten because he suffered a broken nose and the back of his head was covered in blood. His back was wet. Z's explanation makes sense: Z said that he cried out for help but nobody would help. Cries were recorded.

The likely explanation for all this is that M had Z on his back (explaining the wet back), punched Z in the nose (breaking it), and pounded his head on the pavement (covering the back of the head in blood).

Z's explanation explains the facts that were noted in the initial police report (which is on line).

I would agree with Bill Cosby. This is ultimately about guns and why Z felt a need to carry one. Who is at fault? A city that fails to control theft and drugs adequately? A block watch organization that is ok with guns on a blockwatch? Ok in letting people walk around without partners?

Z called 911 plenty of times. Which is somewhat a statement about the condition of his neighborhood. And he was probably armed all those times and never shot anyone.I tend to think Obama should recognize Z as his son.

"For folks in general who complain that this case is being tried in the press, you don't seem to have any problem trying it in this blog."

I kinda despise myself for talking about this case. People are shot every day. They remain anonymous. We don't care. We don't hear about it. Or think about it.

But this case, we care about.

It pushes a lot of our buttons. It's race, of course.

The funny thing about race is that most of us believe that it doesn't upset us. But we get upset at other people getting upset about it.

For instance, some people believe that Zimmerman is a racist. So they're upset that he wasn't charged with murder. I see this reaction as racist, as the demonization of a man because of his skin color. And I get upset. And so we go, round and round.

The media circus around this case interests me a great deal. For instance, the use of a photograph of Martin far younger than he actually is. The mug shot of Zimmerman, making him look mean. "White hispanic." ABC news editing a 911 call to portray Zimmerman as a racist. (That was reprehensible).

Obama injecting himself into the case. Al Sharpton injecting himself into the case. Eric Holder standing side by side with Al Shaprton. The Black Panthers calling for blood and race riots in Florida.

A criminal prosecution as response to protests in the streets. And the over-the-top Murder 2 charge, that doesn't correspond to any facts.

And some of this stuff just interests me as a former attorney. But mostly I think it's race that gets us worked up.

Oh I see.. When presented with the blood evidence on the driveway, the Bronco, the bedroom, the bloody sox, the bloody glove, the blood at Gretna Green?.. it was offered by lawyer pundits that OJ bled a lot.. OJ bled often. (I don't remember if they presented it at trial)

"If all y'all are going to make up hypotheticals and exaggerations and dialogues and different types of cases, that I didn't say, give me fair warning."

No need to make up anything because you said:"I DO know this: that a fist is not considered deadly force. You would have to show that the owner of that fist was trained to be capable to use it as deadly force--like a professional boxer, or a highly trained martial artist, AND that the used it with sufficient force to cause death or serious bodily injury--the kind that puts a person in the hospital with a least serious, if not critical injuries. Neither condition was present here."

Everybody is jumping down your throat because you don't know what you are talking about and don't seem to have the ability to learn. You obviously know nothing about fights. You don't seem to know much about anything but are delighted to bray your ignorance. You're in a hole, stop digging.

You may notice that the first three witnesses were Zimmerman's wife and parents. My guess is that they were put on for several reasons. First, to show ties to the community, which reduce the risk of flight. Secondly, all three said, under oath, that they would essentially turn in George Z, if he fled. And, finally, to counter the prosecutions claims about his "violent" and criminal past. The judge definitely seemed to buy into the later, having been around the block a lot of times (trial court judges very quickly see pretty much everything, and become street wise and cynical to the extreme).

Something else of interest, at least to me. A lot of comment has been made at the loaded terms and assumptions made in the affidavit by the two investigators supporting the charging of Zimmerman. One of the investigators was put on the stand by the defense (it appears that the state could pick which one), and was questioned about the loaded words (like "profile" and "confronted"), inserting quotes around the two uses of expletives (implying that they were verbatim quotes), and the assertion that Zimmerman "falsely assumed [that Martin] was going to commit a crime".

The investigator played dumb there, claiming that the affidavit was a group document, and that he did not remember who had done what, but that he wasn't responsible for any of those things. Three people apparently drafted the affidavit, but only the two investigators swore and signed it. The third was variously described as their supervisor and "Bernie", which, may be lead prosecution counsel today, Assistant State Attorney Bernie de la Rionda.

I think that defense counsel did a pretty good job at attacking that affidavit. The investigator on the stand, time and time again, had to say, no, he didn't know where that came from in the Affidavit, but, yes, he swore to signed it, implying that he had actual knowledge of it. Now, an affidavit like this is most often full of all sorts of hearsay. The problem, all along, has been that the hearsay was not identified, nor was its source. Instead, it is full of conclusory statements with no apparent support, and some of which would be impossible to substantiate (e.g. how did the investigators determine that was Zimmerman "falsely assumed [that Martin] was going to commit a crime"?)

"Everybody is jumping down your throat because you don't know what you are talking about and don't seem to have the ability to learn. You obviously know nothing about fights. You don't seem to know much about anything but are delighted to bray your ignorance. You're in a hole, stop digging." 4/20/12 9:44 P.M.

Yes, we are bellicose tonight. I gave the definition of a "fist" as a "deadly weapon." You want to translate a simple definition to "fights" and say, not only that, I know nothing about fights.

Apples and oranges. As someone above said, "it depends on how it is used." There's your fight. An iron, a clock, a dog leash, a belt (I'm just looking around the room) can all be used as a deadly weapon--so can a fist--but they are not inherently themselves deadly weapons (except the fist by the definition I gave). Nor is their use inherently deadly force.

A person may react against them with deadly force, however, if that person reasonably believes that s/he is in imminent danger of death, or serious bodily harm of the type that would put one in the hospital with very serious or critical injuries. Did I mention that it must be imminent danger, not "maybe"?"

"you don't know what you are talking about and ....You obviously know nothing about fights." You are wrong on both counts.

Will bring a lump to your throat, 'cause he is right: "...George Zimmerman has been chosen to serve as a gladiator in the circus that distracts a bankrupt nation from the criminal folly of its leaders, large and small. He has been assigned white team colors, had an NRA badge pinned to his lapel, and is being shoved out into the stadium while the lunatic mob howls for blood. The Emperor of Hope and Change has already made the thumbs down gesture, the courtiers are rushing out to fix the match...."

This was a bail hearing. It was irrelevant to bail. The apology was nice, but the rest of it was unnecessary and can be used against him later.

It is irrelevant to bail, yes.

But this is a political trial. Zimmerman is on trial because it is politically necessary for him to be on trial; the evidence in no way supports the charges against him.

The apology was an excellent idea, politically. It will have no impact on the verdict, which will obviously be "not guilty" unless the prosecutor somehow manages to empanel an all-black jury or something. However, if Zimmerman is found guilty in the public eye, his life post-trial will be ruined. He needs to counter the "racist vigilante" version of himself established in the press.

Leslyn: Pretty much "anything" can be a deadly weapon if it's used in a manner to make it so. A pillow can be a deadly weapon. A bucket of water. A piece of Saran wrap.

There seems to be a idea out there that one can't meet force with greater force. That one can't use a more than a fist against a fist.

That one can't bring a gun to knife fight. It isn't fair that way.

I'm sorry, but if someone is attacking me, I will respond with whatever will stop that person from attacking me and it won't matter how much more force I bring to bear based on what they are bringing (or even might bring) to the occasion.

If I don't know if you are armed or not you'd better believe that I will assume that you are armed and behave accordingly. By doing so we can both avoid being injured.

When I was an undergraduate at UC Davis, I was mugged by four people, purportedly for a dollar. They pushed me backwards into a creek, and I hit my head on a rock. I saw stars, like in the comic strips. I think that could have killed me. But I didn't get a big bump on my head, for whatever reason, and I didn't even have blood. Those four guys beat me, and I panicked. No, it was not hard for me to imagine that they might kill me.

Not one used a gun. Only their fists, feet, and four on one.

One of the problems was being overwhelmed and controlled. The claustrophobia, the inability to defend myself against an overwhelming force made me fear for my life. The fact was, I had no control over my life at that point. They could take it. That's the effect they wanted to achieve, and they did.

This is a very shameful thing for me to recount and say even today.

Here is what I will say, very simply. If I were on the jury, and the prosecution cannot prove Martin was not on top of Zimmerman banging his head into the concrete when Zimmerman shot him, it would be a very easy answer. Reasonable doubt at a minimum. And I do mean minimum. If Martin in fact did that to Zimmerman, my view is it is not only reasonable doubt, it is justified. You can complete that thought.

And for Leslyn and her desire to be empowered. I think any man that is proven to rape a woman (and I mean even beyond a reasonable doubt, as so many rape cases have been proven false with DNA), cut his nuts off. Hows that for empowerment?

There will be no trial, because he will be immune from both criminal and civil court. This is the judge who will make that call, and he will make it because luckily for Zimmerman this is a strong independent judge who puts the law first. If he got stuck with a pussy judge he would be expendable for the sake of someone's career, which is the only reason he was charged in the first place. Zimmerman and this judge will be the only respectable people in this whole mess. The only ones respecting the law and the greater community.

In use of force, it is the minimum force necessary to stop the person. You said,

"I'm sorry, but if someone is attacking me, I will respond with whatever will stop that person from attacking me and it won't matter how much more force I bring to bear based on what they are bringing (or even might bring) to the occasion.

Correct me if I'm wrong--did you just say it doesn't matter how much force you use as long as you stop someone?

So...if I've got that right...you could shoot a purse snatcher? Or someone who shoved you so they could take that subway space? Or you could put a shiv in the ribs of that rude clerk who slapped you?

If that's what you said, then Bill Cosy is right, this is all about guns.

"Since this is not a domestic abuse case, I limited my answer to whether a fist, as a thing, is itself deadly force in law."

This insistence on disconnecting one thing from another is one of my "buttons." It's what I was talking about on the reading thread about kids with short attention spans. Explaining to people how one thing relates to another thing never seems to help much if they are inclined to insist on viewing events in isolation instead of as part of a larger context.

But I'll try anyway.

There is nothing, at all, in any way, *special* about domestic abuse. Domestic abuse exists with all other physical violence in one big category called "getting the shit beat out of you." It does not, in any way, exist in isolation.

I don't know why you thought that "deadly force" was something that only could be applied with a weapon, but that seemed to be your argument. I was not arguing that fists were weapons, in the way that we define "deadly weapon" which is most certainly defined in some way as a tool. But you said "deadly force." Force is force, and deadly is deadly. There is no necessity for a tool to be involved for a person to be reasonably in fear of his or her life.

That someone is not *armed* in no way requires that special training is necessary in order for there to be a threat to one's life. What a profoundly stupid argument.

What is true in domestic abuse is true anywhere else in any other situation. A man being beaten by someone he doesn't know, who is stronger than he is or who got the upper-hand, who doesn't *stop* once he's knocked him over, is as right to fear that his attacker never *will* stop, as a woman getting beat to a pulp by her boyfriend. Either person might be killed, or they might not, but they can reasonably believe they are about to be beaten to death.

The force their attacker wields is entirely adequate to kill them, without a weapon of design (like a gun or knife) or one of opportunity (like a clock.)

Deadly force is not synonymous with "weapon" or "armed." That Martin had only his fists was and is irrelevant.

I hear all this, you know, Well, this is self defence, this is whatever. No. There is nobody in this country who got killed on his own — nobody.

You keep your white name out there? Good for you, But I want to be clear: you bleed your blood on the roads the rest of us paid for; you hired lawyers the rest of us payed to educate; you were safe in jail because of jailers that the rest of us paid for. You didn't have to worry that marauding bands would come and seize everything at your gated community and hire someone to protect against this, because of the work the rest of us did.

Now look, you killed somebody and it turned into something horrific, or a great book idea? God bless. Keep a big gun under your pillow. But part of the underlying social contract is you take a hunk of the book deal and pay forward for the next kid who comes along and goes on neighborhood watch.

I would like people to just imagine they were Zimmerman and that he has been telling the truth, that Martin doubled back and simply attacked him, broke his nose and began pounding his head into the pavement. Now that's you on the bottom with this guy obviously trying to kill or knock you unconscious and you have a gun. You have only two choices shoot him or let him continue. What are you gonna do?

Nothing in that scenario is unlikely according to what we do know.

I find it very hard to see how the evidence shows anything else to be more likely. Zimmerman's willingness to testify today and what he said and how he said it made it seem even more likely to me. I see a man who is very sure he did the right thing and is not afraid of the truth. He does not seem concerned about mixing up his story. He knows what happened, and he's not worried about keeping his story straight, because it easy - it's just telling the truth. Today he refused to let the persecutor veer from the truth.

"-did you just say it doesn't matter how much force you use as long as you stop someone?

So...if I've got that right...you could shoot a purse snatcher? Or someone who shoved you so they could take that subway space?"

Because that's what "attacking me" means... getting shoved or having your purse snatched.

As for the rest of it... there is no principle of proportional response. If I'm *attacked* (not shoved, not robbed) and can reasonably think that I need to defend myself or I could be raped or killed, I do not have to limit my response to the minimum that will stop the attack. This is one of those things that seems like it would make sense, that you should just stop the person, but real life doesn't work that way. If I'm attacked (not shoved, not robbed) in real life I've probably only got one chance to stop my attacker and I've got to do so decisively. I can't know if something less will discourage my attacker, or if it will just make him angry. And even if I try my hardest to kill him, I probably will fail, so if I try *not* to kill him, I will almost certainly fail to *stop* him... unless I'm just lucky and the person who attacked (not shoved, not robbed) me is civilized and sociable enough to be *sorry* because I punched his nose instead of crushing his throat, and apologize and leave me alone.

How many people likely to do that, attack (not shove, not rob) other people?

If you're going to wait until after you're dead or raped, you might as well forget self-defense and let the police handle it. That's what they *do*.

And for Leslyn and her desire to be empowered. [Wow, that's a reach. How did that get here?] I think any man that is proven to rape a woman (and I mean even beyond a reasonable doubt, as so many rape cases have been proven false with DNA), cut his nuts off. Hows that for empowerment?

Actually, Dante, I'd be willing to be the test case for killing the guy. If I couldn't stop him, I believe the act of rape is "grievous bodily harm." I could never get a straight answer about that from a law school professor, though.

I'm sorry, but if someone is attacking me, I will respond with whatever will stop that person from attacking me

That's right, kimsch. There is nothing in the law which says that if a 7-foot, 250-pound guy is punching little 5-foot, 100-pound you that you have to lay there and take it, or that you are limited to punching back. You are entitled to use whatever level of force is necessary to repel the battery -- that is what is reasonable force. And since trading punches isn't going to suffice, then use of a weapon is reasonable.

Any other rule would mean that bigger people are allowed a legal advantage in any physical altercation. That is not the law.

And if someone of only slightly larger size, or even equal size, is able to place the other in a helpless position, such as down on the ground and on top of them, use of a weapon may be the only way to stop them from continuing to hit on you. When someone is on top of you, there is no requirement that you simply take it rather than pull out a weapon and using it to repel the attack.

Deadly force is not synonymous with "weapon" or "armed." That Martin had only his fists was and is irrelevant.

Agree. A cousin of mine got drunk in a bar in rural Wisconsin and insulted another drunk. The bartender asked them to take it outside. The other guy (also bigger) proceeded to beat the shit out of my cousin--banging his head against concrete--neither were "armed." My cousin died. The guy who killed him is doing time.

That is also why people insist on self-defense covering home invasions by passing castle laws... can you really afford to assume that someone who is willing to break into your home isn't also willing to rape or kill you?

They're willing to break into your home while people are in it. I'd think that was a clue.

And even if the attacker is only using his fists, if you are armed with a gun and he gets you in a helpless position, do you think it possible that the attacker might discover that you have a gun and take if from you and shoot you?

If an attacker is on top of you, with you on the ground, any gun you are carrying is within reach of the attacker.

Yea, that's a tough one. It's certainly a terrible experience and horrendous violation of another person, but in many cases could also be identical in physical reality to a consensual, desirable, and enjoyable act that nearly every woman experiences voluntarily.

Liberty is a very important feature of life.

What is the difference between being taxed and being robbed for instance. In both cases you are forced to give someone your money which can be a great sacrifice. I learned this intimately for the first time this year when rather than having my taxes deducted from a paycheck, I had to pay 43% of my entire year's income in one fell swoop. It felt like a robbery to me, but I couldn't call the cops.

That is also why people insist on self-defense covering home invasions by passing castle laws... can you really afford to assume that someone who is willing to break into your home isn't also willing to rape or kill you?

They're willing to break into your home while people are in it. I'd think that was a clue

Which is one reason that I wouldn't want to live in England these days. Most of our burglaries are day-time, when people are not there. Just the opposite in England - a lot of "hot" burglaries, with the burglars coming armed with bats and the like. Safer for the burglars than to be seen during the day by the cops. Not so much with their victims.

Yea, that's a tough one. It's certainly a terrible experience and horrendous violation of another person, but in many cases could also be identical in physical reality to a consensual, desirable, and enjoyable act that nearly every woman experiences voluntarily.

The current version of this handbook includes examples from the Palestinian/Israel conflicts, but I feel certain the publishers will include an example from the Martin/Zimmerman case in their newest printing.

Not sure what your point is there. Florida law lays out the situations where the use of deadly force is justified.

My guess is that the reason that Florida, along with most other states, lay this out statutorily, is that their legislatures have determined that it is not in their public interest to graduate the level of force that can be applied based on the level of threat, at least not when we are talking the use of deadly force. Thus, for example, an imminent risk of serious bodily injury would not justify the use of deadly force, because you would presumably survive the serious bodily injury - just not in one piece. And, in the case of the commission of a violent felony, you may not even be injured, just threatened. So, when it comes to the use of deadly force, throw out your theory of proportional response, and look to the relevant statutes.

Leslyn: Don't get me wrong. Take the guy out. The reason to is that if someone is willing do to that to you, forcing rape on you, who knows what he will do when he is finished? He has control. That's the point I think many are missing. Self defense is about not being in control of ones own life, and its being in the control of someone else who you think is going to harm you in a serious or unpredictable way (as in kill you). I do not think the potential of getting pregnant is "grievous bodily injury" anymore. You might have made that case in the late 1800s.

The empowerment thing? You brought it up and became famous for it in one of Ann's posts. It comes from your presumed desire to have someone else give you the em in empower, presumably by taking it from someone else. I have some visuals here, but let's not. Get your own power. Like your .357, and your law schooling, etc.

The current version of this handbook includes examples from the Palestinian/Israel conflicts, but I feel certain the publishers will include an example from the Martin/Zimmerman case in their newest printing.

Good grief, Dante, I wouldn't take the guy out for fear of getting pregnant. Nor would I be contemplating whether he would kill me afterward. If I couldn't stop him and the act of rape was taking place, I'd take him out because it's rape.

Leslyn is it reasonable to assume the possibility that a rush of adrenaline or other involuntary fear response could hamper your statutory research just long enough for the perpetrator to take away those choices residing in that same brain about to be bashed in... presumably?

Grow up garage. I'm very impressed that you know that rape is a bad thing, but that's not the point. But knowing your impeccable record for being wrong around here, I don't really care what your opinion is.

But could you shoot a Ted Bundy? He's handsome, charming, flattering, and just climbed in your window. He continues to approach, despite your warnings that you'll shoot. He begs you not to be so unreasonable, to put down the gun so you can talk, but, you know he's a serial killer, and maybe he really likes you. He has a pizza. How do you justify shooting a guy with a pizza?

Little Caesars Obama fundraiser flashed across my brain.. but then I remember Garage is on neighborhood watch and he might send the Secret Service hot on my trail.. and then I'll let them in when they say Pizza guy.. there diagonally.. pretty sneaky sis..

Climbed in my window (not consensual, of course)--I know he's a serial killer--I know he is Ted Bundy the serial killer whose MO is to be charming, then rape and kill the woman--what do I care about his fucking (no pun intended!) pizza? My .357 raises your pizza, and I CALL.

To be precise, for Lem, I have the facts to reasonably believe I am in imminent danger of death and grievous bodily harm.